Afederal district court in Washington held that a prisoner had been wrongly prevented from applying to the state's Extended Family Visiting (EFV) program. The court also held that prison rules restricting EFV participation to prisoners married before their incarceration did not violate the ex post facto clause.

EFVs are private, overnight visits between prisoners and immediate family members. Washington is one of five states that still has such a program (the others are NY, CA, NM and MS). In 1995 Washington's EFV program came under attack by reactionary legislators. [ PLN , March, 1995]. This was compounded when Todd Hiivala, a prisoner at the Clallam Bay Correction Center, stabbed and almost killed his wife during an EFV. Hiivala's attack ended only after a guard shot him. [ PLN , Oct. 1995] In response to the Hiivala incident and legislation that would eliminate EFVs, the Washington Department of Corrections (DOC) enacted DOP Policy 590.100 on February 13, 1995, that significantly changed which prisoners could participate in the EFV program.

Among the changes the policy enacted were that it prohibited from EFV participation prisoners in close custody; that had a history of domestic violence and; at issue in this case, requiring that prisoners be married prior to their incarceration before seeking to participate in the EFV program with a spouse. The policy retroactively set January 10, 1995, as the cut off date for prisoners to apply for EFVs with spouses.

Karlton Daniel submitted his marriage application in 1994. Prison officials claim they lost it. Daniel resubmitted his application and was eventually married in November, 1995. Daniel then submitted an EFV application which was denied by Airway Heights Correction Center (AHCC) superintendent Kay Walter, on the ground that he was married after the January, 1995, cut off date. After getting an evasive, bureaucratic run around, Daniel filed suit. The court granted partial summary judgment in Daniel's favor and partial summary judgment in the defendants' favor.

The court held that restricting EFVs to prisoners married prior to their incarceration served a legitimate penological interest because a spouse who marries a prisoner after incarceration may not be familiar with the prisoner's behavior or criminal history.

The court also held that the "grandfathering" clause of DOP Policy 590.100, which allowed prisoners already participating in the EFV program to continue in it regardless of when they were married, was constitutional. The court held the differentiation between prisoners with a good track record of EFV participation and those with no track record served a legitimate penological purpose. The court did not address whether the policy would withstand constitutional scrutiny in cases where a prisoner participates in the EFV program with other family members and then marries. Even with a "good track record" of EFV participation an application for participation with a spouse married after imprisonment would be denied under the current policy.

The court ruled in Daniel's favor by holding that the uncontroverted evidence showed Daniel had submitted his EFV application in 1994, well before the 1995 cut off date. Thus, he was eligible for the "grandfathering" exception of the policy. The court remanded the case to the DOC "in order that plaintiff's application be processed, pursuant to DOP 590.100's grandfathering clause."

"Further reason exists for the remand to the Department of Corrections. Were it necessary for the court to reach the issue of whether the above grandfathering clause exception is rationally related to a legitimate penological purpose, the court would have to conclude that it is not. There is simply nothing in the record which would support holding that defendants unequal treatment of inmates depending on the date on which an inmate submitted his application for participation in the EFV program is reasonably related to furthering a legitimate penological purpose." The court observed that "unequal treatment based on date of submission of the FFV application does not further the prison's goal of minimizing the security risks attendant with the EFV program."

The court noted that It gave the defendants three opportunities to address this issue and they refused to do so. Rather than respond to the court's orders "Defendants have Instead explained in detail why the effective cut off date of the grandfatbering clause Is January 10, 1995. Surely, defendants do not believe that using a non arbitrary date to classify Inmates, who are otherwise similarly situated, justifies arbitrary disparate treatment of those two classes of inmates. Indeed, the right to equal protection would be a hollow right if that is all that is required to satisfy even rational basis review."

After the court granted Daniel's motion to publish the ruling, the defendants filed a motion for the court to reconsider and vacate its ruling. The court denied the motion, noting it was 34 days late. The defendants claimed their attorney was too busy to respond. The court observed that a busy schedule does not excuse neglect by counsel "Particularly in view of the large number of attorneys employed in the Attorney General's office."

This ruling is very narrow and fact specific. PLN is aware of at least seven unsuccessful federal court challenges and one state court challenge to DOP Policy 590.100. In those cases, the courts simply held there was no constitutional right to EFVs and refused to examine the plaintiffs' equal protection claims. ["WA EFV Ban Upheld." PLN , May, 1997]. See: Daniel v. Rolfs , 29 F. Supp.2d 1184 (ED WA 1998).

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